Eleanor A. Barry, Esq., United States Department of Justice,
Washington, D.C., for respondent.

DISMISSAL ORDER

Petitioner, Guadalupe Corrales, filed a petition for compensation under the National
Childhood Vaccine Injury Act (Vaccine Act or Act)(1) on 9
August 1996. Mrs. Corrales alleges that her son, Felipe Corrales, developed necrotizing
fasciitis (a flesh eating bacteria) as the result of a Measles, Mumps and Rubella (MMR)
vaccination he received on 13 August 1993. Pet. Petition, at 1, 2. Respondent filed a Rule
4(b) report on 7 November 1996, recommending against compensation. In that report,
respondent questioned, inter alia, whether the petitioner had incurred in excess of
$1,000 in unreimbursable expenses as required by § 11(c)(1)(D)(i). The Rule 5 conference
was held on 14 February 1997. On 19 June 1997, the court conducted a status conference and
the parties were ordered to submit memoranda addressing the issue of whether the
babysitting expenses of the petitioner may be used to meet the statutory requirement that
petitioner incur in excess of $1,000 in unreimbursable expenses due in whole or in part to
the alleged vaccine-related illness, disability, injury or condition as required by §
11(c)(1)(D)(i). The dispute arises from petitioner's claim that Mr. Corrales' sister,
Consuelo Corrales, and Leticia Esparza, a friend, provided babysitting for the Corraleses'
other children while Felipe was in hospital and for approximately four weeks after he came
back home. Aff. of Miguel Corrales (28 Feb. 1997), at ¶ 4-6. Mr. Corrales avers that, in
exchange for these services, he provided groceries for his sister and her children and
cash to Mrs. Esparza. Id.

On 18 July 1997, respondent filed her brief in opposition to including
the babysitting expenses toward the $1,000 unreimbursable expenses requirement. Petitioner
filed a brief in response on 7 August 1997 arguing for the inclusion of the babysitting
costs toward the $1,000 unreimbursable expenses requirement. This issue, which involves
elements of petitioner's prima facie case as set forth in § 11(c)(1), must be
resolved in petitioner's favor in order for her case to go forward. After considering the
entire record and for the reasons discussed infra, the undersigned finds
petitioner, in this case, has not proven, by a preponderance of the evidence, that it is
appropriate to include the petitioner's babysitting expenses when calculating the $1,000
unreimbursable expenses requirement. In addition, petitioner has not incurred in excess of
$1,000 unreimbursable expenses as required by § 11(c)(1)(D)(i). Ergo, petitioner's
case is dismissed.

DISCUSSION

The Act contains certain prerequisites which a petitioner must satisfy in order to
establish a prima facie case of entitlement to compensation. § 11(c)(1); Smith
v. Secretary of HHS, No. 91-57V, 1992 WL 210999, at *1 (Cl.Ct.Spec.Mstr. Aug 13,
1992);(2)Olascoaga v. Secretary of HHS, No.
93-0616V, 1994 WL 100687, at*1 (Fed.Cl.Spec.Mstr. March 14, 1994). Section
13(a)(1)(A) of the governing statute provides that program compensation shall be awarded
if the court finds "that the petitioner has demonstrated by a preponderance of the
evidence the matters required in the petition by section 300aa-11(c)(1) of this
title." Section 11(c) states, in pertinent part, as follows:

A petition for compensation under the Program for a vaccine-related injury or death
shall contain--

(1) an affidavit, and supporting documentation, demonstrating that the
person who suffered such injury or who died-- ***

(D)(i) suffered the residual effects or complications of such illness, disability,
injury, or condition for more than 6 months after the administration of the vaccine and
incurred unreimbursable expenses due in whole or in part to such illness, disability,
injury, or condition in an amount greater than $1,000.

§ 11(c)(1)(D)(i)(emphasis added).

The plain language of the statute indicates there are four elements to the $1,000
unreimbursable expenses requirement of § 11(c)(1)(D)(i). The expenses must be incurred,
unreimbursable, due ... to the illness, and in an amount greater than $1,000. Case law has
clarified the meaning of the four statutory requirements and added two more requirements.
First, the expenses must be reasonable, and second, the expenses must primarily be for the
benefit of the injured child. Ferguson v. Secretary of the DHHS, No. 93-376V, 1995
WL 642693, at *3 (Fed.Cl.Spec.Mstr. Oct. 19, 1995).

With the statutory and case law requirements combined, the result is a six-part test
summarized in a logical and concise format as follows:

A petitioner must demonstrate, by affidavit and supporting documentation, the expenses
are:

(1) due to ("but for") the vaccine-related injury;

(2) incurred;

(3) unreimbursable;

(4) reasonable;

(5) primarily for the benefit of the injured party; and,

(6) in an amount greater than $1,000.

Petitioner has the burden of demonstrating the facts necessary for
entitlement to an award by a "preponderance of the evidence." § 13(a)(1)(A).
Under that standard, the existence of a fact must by shown to be "more probable than
not." In re Winship, 397 U.S. 358, 371 (1970)(Harlan, J., concurring).
Respondent argues that the babysitting costs of petitioner are not appropriately included
in the $1,000 unreimbursable expenses calculation because they do not meet four of the six
elements listed above. In particular, the babysitting expenses are not "due to"
the vaccine-related injury, were not "incurred" by the petitioner, were not
reasonable, and they were not primarily for the benefit of the injured party. Petitioner
argues that she meets all of the six elements. The court concludes that the petitioner has
failed to prove by a preponderance of the evidence that she "incurred" the
babysitting expenses.

I"DUE ... TO"

In order for an expense to qualify towards the requirements of §
11(c)(1)(D)(i), the expense must be "due ... to" the vaccine related injury. The
pertinent part of that statute requires the petitioner to demonstrate, by a preponderance
of the evidence, that the vaccine-related expenses are "due in whole or in part to
such illness, disability, injury, or condition." § 11 (c)(1)(D)(i). In this case,
petitioner and respondent have caviled regarding the true meaning of the element.
Historically, this court has ruled that the "due to" element of §
11(c)(1)(D)(i) can be satisfied in one of two ways. The element is satisfied by either
meeting the definition of § 15(a)(1)(A) or (B) or by meeting the "but for"
test. These bifurcated prongs will be discussed in subsections A & B of this section.
For the reasons stated in subsections A, B & C of section I, the undersigned holds
that no logical or legal reason has been proffered to deviate from precedent. Ergo,
the court concludes the babysitting expenses satisfy the "due to" element
because they would not have been incurred "but for" the vaccine-related injury.

ASECTION 15

An expense can satisfy the "due to" element if it satisfies the requirements
of § 15(a)(1)(A) or (B). The crux of the reasoning is that § 15(a)(1)(A) and (B)
describe the types of expenses which can be awarded to a successful petitioner for his
vaccine-related injuries, therefore, § 15(a)(1)(A) and (B) must also describe the kind of
past vaccine-related expenses which count toward the $1,000 unreimbursable expenses
requirement. This argument has been accepted by this court because the language of §
11(c)(1)(D)(i) is sufficiently analogous to that in § 15(a)(1)(A) and (B) so as to
construe the former in light of the latter. Mathisen v. Secretary of the DHHS, No.
92-0703V, 1994 WL 808593, at*1 (Fed.Cl.Spec.Mstr. May 2, 1994); Jamieson v.
Secretary of HHS, No. 90-1019V, 1992 WL 229390, at *2 (Cl.Ct.Spec.Mstr. Aug. 31,
1992); Matteo v. Secretary of the DHHS, No. 90-594V, 1991 WL 128584, at fn.4
(Cl.Ct.Spec.Mstr July 1, 1991); Olascoaga v. Secretary of HHS, No. 93-0616V, 1994
WL 100687, at *1 (Fed.Cl.Spec.Mstr. Mar. 14, 1994).

(iii) were for diagnosis, medical or other remedial care, rehabilitation, developmental
evaluation, special education, vocational training and placement, case management
services, counseling, emotional or behavioral therapy, residential and custodial care and
service expenses, special equipment, related travel expenses, and facilities determined to
be reasonably necessary.

§ 15(a)(1)(B)(iii)(emphasis added). The language of § 15(a)(1)(A)(iii)(II) is nearly
identical to that of § 15(a)(1)(B)(iii). If an expense falls within one of the categories
listed above, then the "due to" element is satisfied. The court holds, in this
case, the babysitting expenses do not fall within one of the criteria set forth in §
15(a)(1)(A) or (B).(4)

Respondent argues that the court should halt here and rule in favor of
respondent. In this case, respondent argues that § 15 should be the only
description of vaccine-related expenses that meet the requirements of § 11(c)(1)(D)(i).
This is not the holdings of the cases listed supra. Per contra, those cases
state that § 15 gives this court a litany of the types of expenses which positively meet
the requirements of the "due to" element.(5) If
an item is not listed in § 15, for example babysitting costs, that does not mean the
expenditure automatically fails the "due to" element of § 11(c)(1)(D)(i).
Instead, the next step in the process is to apply the "but for" test to see if
the expenditure meets the requirements of § 11(c)(1)(D)(i). Ferguson v. Secretary of
the DHHS, No. 93-376V, 1995 WL 642693, at *2 (Fed.Cl.Spec.Mstr. Oct. 19, 1995); Long
v. Secretary of HHS, No. 94-310V, 1995 WL 929524, at *2 (Fed.Cl.Spec.Mstr. May 3,
1995).

B"BUT FOR" TEST

A petitioner can satisfy the "due to" element of §
11(c)(1)(D)(i) by using the "but for" test used in traditional tort litigation.
An expense qualifies if it would not have been incurred "but for" the alleged
vaccine-related injury. This test has been expressly endorsed in several cases. Williams
v. Secretary of HHS, No. 90-2239V, 1996 WL 608455, at *1 (Fed.Cl.Spec.Mstr. Oct. 10,
1996); Ferguson v. Secretary of the DHHS, No. 93-376V, 1995 WL 642693, at *2
(Fed.Cl.Spec.Mstr. Oct. 19, 1995); Long v. Secretary of HHS, No. 94-310V, 1995 WL
929524, at *2 (Fed.Cl.Spec.Mstr. May 3, 1995); May v. Secretary of HHS, No.
91-1057V, 1997 WL 402412, at *2 (Fed.Cl.Spec.Mstr. June 27, 1997). In this case,
petitioner's babysitting expenses would not have been incurred "but for"
Felipe's alleged vaccine-related injury. If Felipe had not been in hospital, his parents
would not have needed a babysitter to care for the children remaining at home. Felipe was
severely injured by the necrotizing fasciitis and he needed the nurturing care of both of
his parents at hospital. Even after Felipe's return home, Mr. and Mrs. Corrales needed
assistance taking care of the other children because caring for Felipe was time consuming.
Respondent has no evidence that petitioner used a babysitter for her children prior to
Felipe's injuries. "But for" Felipe's alleged vaccine-related injury, petitioner
would not have needed a babysitter.

CMEDICAL EXPENSES

Respondent has also argued that the babysitting expenses don't meet the "due
to" element because the babysitting costs are not medical expenses - i.e., payments
to physicians, hospitals, and similar health care providers. Respondent wants this court
to look at the legislative history of the statute in support of her proposition. The
legislative history, however, is at variance with respondent's proposition. While there is
one passage in the legislative history where a committee report,(6)

in describing the "$1,000 requirement," places the adjective
"medical" in front of the word "expenses" in a draft of the statute,
Congress did not place the adjective "medical" in front of the word
"expenses" in the final version. Ferguson v. Secretary of the DHHS,
No. 93-376V, 1995 WL 642693, at *2 (Fed.Cl.Spec.Mstr. Oct 19, 1995).

Withal, it is the wording of the statute, not the legislative history, that controls. Williams
v. Secretary of HHS, No. 90-2239V, 1996 WL 608455, at *1 (Fed. Cl. Spec. Mstr. Oct.
10, 1996). In questions of statutory construction, a court must first examine the language
of the statute at issue. When a statute is plain and unequivocal on its face, there is no
need to resort to legislative history. Olascoaga v. Secretary of HHS, No. 93-0616V,
1994 WL 100687, at *1 (Fed.Cl.Spec.Mstr. March 14, 1994); United States v. Oregan,
366 U.S. 643, 648 (1961). The plain language of the Act does not limit expenses to
"medical expenses" nor does it place other specific limitations on the type of
injury-related expenses that qualify. Ferguson v. Secretary of the DHHS, No.
93-376V, 1995 WL 642693, at *2 (Fed.Cl.Spec.Mstr. Oct. 19, 1995). Therefore, the most
straightforward interpretation of the language of the statute is that any expense, which
would not have been incurred "but for" the vaccine-related injury, satisfies the
"due to" element of § 11(c)(1)(D)(i).

In order for an expense to qualify towards the requirements of § 11(c)(1)(D)(i), the
expense must be an "incurred" expense. The expense must be incurred within the
statute of limitations period for filing the Program petition, which in this case means
the thirty-six month period from the onset of Felipe's symptoms. § 16(a)(2); May v.
Secretary of HHS, No. 91-1057V, 1997 WL 402412, at *1 (Fed.Cl.Spec.Mstr. June 27,
1997); Black v. Secretary of the DHHS, 93 F.3d 781, 790 (Fed.Cir.1996). In this
case, the meaning of the word "incurred" is in dispute.

Unless otherwise defined, "the words of a statute must be given their usual and
ordinary meaning." State v. Thiele, 736 P.2d 297, 301 (Wash.Ct.App. 1987).
Additionally, in seeking an appropriate construction, it has been noted that "[t]he
most fundamental rule of statutory construction is that the court should ascertain the
intent of the Legislature so as to effectuate the purpose of the law." Fierro v.
State Board of Control, 236 Cal.Rptr. 516, 517 (Cal.Ct.App. 1987). Stated differently,
"courts, in construing a statute, may with propriety recur to the history of the
times when it was passed; and this is frequently necessary, in order to ascertain the
reason as well as the meaning of particular provisions in it." United States v.
Union Pacific R.R. Co., 91 U.S. 72, 79 (1875). Following this admonition, and
harmonizing the meaning of the questioned term with all other parts of the statute so that
meaning is accorded every word and phrase, will produce a useful and workable definition. Fierro
v. State Board of Control, 236 Cal.Rptr. 516, 517 (Cal.Ct.App. 1987).

Dictionaries define the word "incur" as "to render oneself liable to
[damages]," "to become through one's own actions liable or subject to,"
"to bring upon oneself," VII Oxford English Dictionary 835 (2nd. ed.
1989), or similarly, "to have liabilities cast upon one ... [t]o become liable or
subject to, ... as to incur debt." Black's Law Dictionary 768 (6th ed. 1990).
One incurs an expense, therefore, at the moment one becomes legally liable, not at the
moment when one pays off the debt, nor at the moment when one decides that an expense may
become necessary one day in future. Quarles Petroleum Co. v. United States, 213
Ct.Cl. 15, 22, 551 F.2d 1201, 1205 (1977)("To incur means to become liable for or
subject to; it does not mean to actually pay for.").

An incurred expense is an amount of money petitioner is legally obligated to pay. Warner
v. Secretary of HHS, No. 92-0201V, 1992 WL 405286, at *1 (Fed.Cl.Spec.Mstr. Dec. 29,
1992); Black v. Secretary of the DHHS, 33 Fed.Cl. 546, 550 (1995). A gift given in
appreciation of a kind act is not an incurred expense because there is not a legal
obligation to bestow gifts on charitable persons. Ruefully, this ruling may adversely
affect the recipients of pro bono amicable services (in the context of §
11(c)(1)(D)(i)), but it is the proper function of the court to apply the law to the facts.
Also, petitioner must prove she incurred her expenses by a preponderance of the evidence.
§ 13(a)(1)(A). For the reasons explained infra, the court holds the petitioner did
not incur the babysitting expenses.

In this case, petitioner has not proven by a preponderance of the
evidence that she incurred the babysitting expenses. In fact, petitioner's affidavits show
just the opposite of the desired effect. In Mr. Miguel Corrales' affidavit, dated 28
February 1997, he stated in ¶ 8 he "did not pay Consuelo [his sister] a salary
because she would not accept it." Id. Instead, Mr. Corrales "provided all
groceries for Consuelo and her children and diapers for Christina." Id. at ¶
6. The "grocery bill was approximately $35 per week more than it usually was. These
increased grocery costs totaled approximately $230 for the 6 ½ week period." Id.
at ¶ 7. Mr. Corrales also describes how Leticia Esparza, a friend, cared for Felipe. He
said he "gave her an additional $15 on two occasions in gratitude for her
services to our family." Id. at ¶ 5 (emphasis added). The costs of the
groceries for Consuelo and the money given to Mrs. Esparza were not incurred expenses
because there was no legal obligation to pay for the babysitting expenses. Instead, Mr.
Corrales clearly stated his sister would not accept a salary for her services. Also, Mr.
Corrales clearly stated he gave his friend some money in gratitude of her services. It
must be reasoned that these expenditures were gifts in appreciation for the help the
Corraleses received in a time of need. The court recognizes that Mr. Corrales' affidavit,
dated 12 June 1997, at ¶ 9 and 10, and Mrs. Corrales' affidavit, dated 12 June 1997, at
¶ 5 and 6, state that the money to Mrs. Esparza was not a gift and the groceries for
Consuelo Corrales were for services rendered, but the court accepts these affidavits cum
grano salis. They contradict the earlier affidavit of Mr. Corrales and they were filed
after respondent filed, on 5 May 1997, her brief in opposition of including the
babysitting expenses towards the $1,000 unreimbursable expenses requirement. For these
reasons, the court must conclude that the babysitting expenses were not incurred as
required by § 11(c)(1)(D)(i). IIIUNREIMBURSABLE

In order for an expense to qualify towards the requirements of §
11(c)(1)(D)(i), the expense must be "unreimbursable." Respondent does not argue
that the babysitting expenses are reimbursable. After reviewing the file and relevant case
law, the court rules the expenses are unreimbursable because the evidence indicates that
the petitioner doesn't have a legal right against anyone to be reimbursed for the
babysitting expenses.

IVREASONABLE

In order for an expense to qualify towards the requirements of § 11(c)(1)(D)(i), the
expense must be "reasonable." Ferguson v. Secretary of the DHHS, No.
93-376V, 1995 WL 642693, at *2 (Fed.Cl.Spec.Mstr. Oct. 19, 1995)(travel expenses were not
reasonable when petitioner stayed in a city for too long); May v. Secretary of HHS,
No. 91-1057V, 1997 WL 402412, at fn.6 (Fed.Cl.Spec.Mstr. June 27, 1997)(explaining that if
an injured party needed a knee brace, and one made from aluminum costing $500 would
suffice, then expenditure of $1,000 for a brace made of gold instead of aluminum would
fail the "reasonableness" test).

Respondent argues the Corraleses did not need a babysitter because one
of the spouses could have stayed home with the children while the other was at the
hospital with Felipe. Resp. Brief, at 6. Also, respondent agues that once Felipe returned
home, there was no longer a need for a babysitter. Id. Not without reason, Mr. and
Mrs. Corrales believed their child was approaching death. It is more than reasonable for
both parents to want to be with a dying child. Additionally, once home Felipe still
required a quantum of care and Mr. Corrales had to return to work. The court rules the
babysitting expenses were reasonable.

VPRIMARILY FOR THE BENEFIT OF THE INJURED PARTY

In order for an expense to qualify towards the requirement of §
11(c)(1)(D)(i), the expense must be primarily for the benefit of the injured party.
Respondent argues that the babysitting services were for the children remaining at home,
and not for Felipe, and therefore the expenses were not primarily for the benefit of the
injured child. Resp. Brief, at 5. Respondent fails to recognize that the primary purpose
of the babysitting was to allow the parents the opportunity to see Felipe. Felipe received
the benefit of having his parents love and nurture him while he was sick in hospital. This
benefit is both real and understandable. The court rules the expenses were primarily for
the benefit of the injured party (Felipe).

VIAN AMOUNT GREATER THAN $1,000

In order for the expenses to satisfy the requirements of §
11(c)(1)(D)(i), the aggregate sum of the expenses must be an amount greater than $1,000.
If petitioner's unreimbursable expenses do not exceed $1,000, she has not satisfied the prima
facie requirements of § 11(c) and her case must be dismissed. On 11 April 1997,
petitioner filed Petitioner's Supplemental Brief Re: $1,000 Threshold Expenses. In that
document, petitioner listed the transportation, babysitting, and hospital food expenses of
the petitioner is a concise manner. The sum of the expenses is $1,047.50. This included
$100.00 "paid to Leticia Esparza" and $227.50 for the "increase in grocery
bill." Id. at 2. Since the court rejects the babysitting expenses because they
were not "incurred," the $327.50 listed for babysitting expenses are expunged
from the total amount. This leaves only $720.00 in unreimbursable expenses. Petitioner has
not incurred an amount greater than $1,000 in unreimbursable expenses,(8)
and therefore, petitioner's case must be dismissed.

CONCLUSION

The Act contains certain prerequisites which a petitioner must satisfy in order to
establish a prima facie case of entitlement to compensation. § 11(c)(1).
Petitioner must prove by a preponderance of the evidence, § 13(a)(1)(A), each of the six
elements of the $1,000 unreimbursable expenses requirement of § 11(c)(1)(D)(i). In the
case at bar, petitioner has failed to prove her babysitting expenses satisfy the
requirement that the expenses were "incurred." Further, petitioner has failed to
prove she incurred greater than $1,000 unreimbursable expenses. Consequently, petitioner's
case is hereby DISMISSED with prejudice. In the absence of a motion for review filed
pursuant to RCFC, Appendix J, the clerk is directed to enter judgment accordingly.

IT IS SO ORDERED.

Richard B. Abell

Special Master

1. The statutory provisions governing the Vaccine Act are found in
42 U.S.C. §§ 300aa-1 to 300aa-34 (1991 & Supp. 1997), as amended by Title II of the
Health Information, Health Promotion, and Vaccine Injury Compensation Amendments of 26
November 1991 (105 Stat. 1102). The National Vaccine Injury Compensation Program comprises
Part 2 of the Vaccine Act. Reference will be to the relevant subsection of 42 U.S.C. §
300aa.

2. The Federal Courts Administration Act of 1992, Pub.L.No. 102-572,
§ 902(a), 106 Stat. 4506, 4516 (1992), enacted on October 29, 1992, changed the name of
the United States Claims Court to the United States Court of Federal Claims. The United
States Court of Federal Claims is the successor to the United States Claims Court in all
respects. See General Order No. 33.

3. Post-act cases are those in which the vaccine in question was
administered after October 1, 1988.

4. Petitioner cites the case of Waage v. Secretary of the DHHS,
No. 90-260V, 1991 WL 105487, at *2 (Cl.Ct.Spec.Mstr. May 30, 1991), in which the court
awarded the petitioner $320 per year for babysitters while the parents take the child to
an out-of-town doctor to support her proposition. Respondent cites the case of Wasson
v. Secretary of the DHHS, No. 90-208V, 1991 WL 20077, at *6 (Cl.Ct.Spec.Mstr. Jan. 10,
1991), in which the court denied an award of babysitting costs to the petitioner. Because
this court holds the babysitting expenses satisfy the "but for" test in this
case, this court need not elaborate on its holding that the babysitting expenses do not
fall within the criteria set forth in § 15(a)(1)(A) or (B) because it would be dicta.

5. The argument advanced by respondent is réchauffé and has
been resoundly rejected by this court on multiple occasions. It would be apropos for
respondent to remove this argument off her standard boilerplate objections to petitioner's
expenses.

6. See H.R.Rep. No. 100-908, pt.1, at 699 (1987).

7. Again, the argument advanced by respondent is réchauffé
and has been resoundly rejected by this court on multiple occasions. It would be apposite
for respondent to remove this argument off her standard boilerplate objections to
petitioner's expenses.

8. Petitioner has also asked the court to include towards the
"$1,000 requirement" the costs of meals eaten in hospital by Mr. and Mrs.
Corrales while they were visiting Felipe in hospital. This valid request fits squarely in
a prior decision by the undersigned. Jamieson v. Secretary of HHS, No. 90-1019V,
1992 WL 229390, at *2 (Cl.Ct.Spec.Mstr. Aug. 31, 1992). Nonetheless, the petitioner's
total of $1,047.50 unreimbursable expenses listed above already includes the $480.00 for
food purchased by Mr. and Mrs. Corrales at hospital from August to September. As explained
above, even with the food expenses included, the petitioner still falls short of the
$1,000 threshold.